The American people are going to wake up tomorrow and be shocked to hear that a member of Al Qaeda has the same constitutional rights as an American citizen" - Sen. Lindsey Graham (R-S.C.)
Aaarrrrggghh! It's not about rights, dammit! It's about power! #$%%^^#$!@!@
Thursday, the Supreme Court released a truly landmark opinion (pdf link) on habeas corpus that has the Left breathing a little easier, and the Right foaming at the mouth and stomping their feet. Reviewing the comments on both sides reveals a startling gap in our basic understanding of the Constitution. Like the misuse of the CIC designation, our fundamental misconception of the Constitution pervades our thought and leads to ignorant conclusions of ever increasing magnitude.
Morph with me into constitutional-wingnut mode to explore why so many are so wrong in their approach to constitutional issues . . .
In much the same way that Crashing Vor eloquently explained the fundamental misuse of the term "Commander-in-chief," I write in an attempt to correct another fundamental misconception.
People generally understand Constitutional issues in terms of rights. The right to bear arms, the right to due process, a woman's right to choose, a detainee's right to habeas corpus, etc. They vaguely assume that the purpose of the Constitution is to protect their special, individual, "inalienable" rights. There is a magic list of these "constitutionally-protected" rights and we fight about whether to add new rights to the magic list.
This is a fundamentally flawed frame through which to view constitutional issues. It is neither new, nor limited to non-legal types. Scalia himself is guilty of it - when it is convenient for him to be.
A Constitutional question is never, and can never be, about creating rights. I repeat, the Supreme Court does not, cannot, "create" or "extend" rights. The Court is not God, and it does not have the power to bestow rights on anybody.
To the contrary, and, as we first recognized in our Declaration of Independence, everyone on earth already holds every inalienable right that exists:
We hold these Truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain inalienable rights, that among these are Life, Liberty, and the Pursuit of Happiness -- . . ." (emphasis added)
As you damn well know, Lindsey, it is fundamental, this concept of equal rights. Yes, we have struggled with the definition "men", but we eventually got it right, and the landmarky part of Thursday's historic decision is its subtle confirmation that "all men" really does mean everyone.
But Thursday's decision isn't about rights at all. It is about power. More specifically, the lack of power.
I'm sure even Lindsey would agree that if the government has no power to detain, it really doesn't matter what rights the detainees do or do not have. Lucky for Lindsey, the Court punted on that question and assumed, without deciding, that the government had the power to detain these people. Whether that's true is an argument for another day.
On the question of whether the government has the power to deny the Writ of habeas corpus to these detainees, the majority of the Court said that it did not. The dissenters argue that the detainees have no right to habeas, but the point of the majority, however lost in the fog of legalese it may be, is that the government has no power to deny habeas because the requirements of the Suspension Clause are not met.
That's kind of an important distinction isn't it, Lindsey?
We recognized in the Declaration of Independence that the government's power to act is only legitimate if it derives from the consent of the governed. We the People are the governed, and the extent of our consent to confer power on our government is documented in the Constitution.
We the People, in order to form a more perfect union, establish justice, ensure tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty for ourselves and our posterity, do ordain and establish this Constitution for the United States of America.
The Constitution is a creation of We the People. It is not something that has been imposed on us from a higher authority. We are that higher authority. We are the sovereign. All three branches of government created under the Constitution have only those powers that we have granted to them and no more. This is bedrock, people. We spent our first hundred odd years dickering about whether governmental powers could be implied and if so, to what extent, but the bedrock principle is that the power of our government to act is limited to those powers we have consented to give to it in the Constitution.
The Supreme Court is vested with the authority to decide what power We the People consented to give. The Court decides what the Constitution means, what the law is. This is the concept of judicial review and the legacy of Marbury v. Madison. It is the Court's unique function to determine whether it, or either of the other branches, has been granted the power, by We the People, to act in a particular circumstance.
Before you ever reach a discussion of constitutionally-protected rights, you must first find that the government has the power to act to affect those rights. I'd venture a guess that some 80-90% of We the People do not grasp this fundamental concept. Of those that do, some large portion are intellectually dishonest enough that they fail to respect it. Lindsey, are you listening?
It should be obvious that the Constitution, as the source of all governmental power, must necessarily apply to all governmental action. The crime of Bush's enemy combatant detention program is that Bush claimed the power to act outside the Constitution. Such power simply does not exist. Unfortunately, for most of us, Justice Kennedy's opinion does more to obscure that point than clarify it.
How did we get so confused? In part, I blame the Bill of Rights. It should never have been adopted. Beware of lists. Lists can provide useful examples to explain an underlying, abstract concept, but all too often the concept gets lost in the debate over which examples to include and which to exclude from the list. The list becomes exhaustive instead of illustrative. This was the danger Hamilton warned us about when he argued that a Bill of Rights was unnecessary and potentially harmful.
I go further, and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power. They might urge with a semblance of reason, that the Constitution ought not to be charged with the absurdity of providing against the abuse of an authority which was not given, and that the provision against restraining the liberty of the press afforded a clear implication, that a power to prescribe proper regulations concerning it was intended to be vested in the national government. This may serve as a specimen of the numerous handles which would be given to the doctrine of constructive powers, by the indulgence of an injudicious zeal for bills of rights." - Alexander Hamilton, The Federalist No. 84
We have failed to heed Hamilton's warning. The idea that because specific protections exist, the government necessarily holds the power to affect the protected rights took hold. That misconception, in turn, led to the idea that if the Constitution doesn't afford specific protections, the government is free to act. Both are baseless, ignorant conclusions stemming from the fundamental misconception that the Constitution exists to protect individual rights. It does not. The Constitution exists to delineate the power of our government to act.
The proper focus on governmental power is also obscured by the analysis we undertake to determine the scope of that power. Where the government does have the power to act, the scope of that power is limited by balancing the competing interests of individual rights vs. the common good. Our rights are not absolute. They may be infringed, or even denied, when necessary to promote the common good through the legitimate exercise of governmental power. Finding the fulcrum point for that balancing act depends on the nature, scope and relative importance of the individual right being affected and the competing societal interest being furthered by the government's action. In short, you can't determine how far the government can go in its exercise of legitimate power until you determine which individual rights are being impacted and to what degree. It is an exercise in labeling and classification, NOT an exercise in creating or denying rights.
Perhaps the most egregious example is Roe v Wade. Everyone understands that Roe created a right to privacy. That's simply wrong. The right to privacy has always existed. Roe decided the extent to which the government can interfere with that right in the course of exercising its legitimate power to regulate abortion. Whether they called it the right to privacy, or the right to dominion over one's body, or the right to expel tissue from one's uterus, is irrelevant. What was important was whether the individual's interest in not being subject to governmental interference outweighed society's interest in regulating the individual's behavior. But that analysis was lost in the debate over whether to include the "right to privacy" on the magic list. It is discussions of this sort that have shifted the focus from the exercise of power to the protection of rights.
Viewed from a frame focused on the existence of power, the Bill of Rights is more accurately a list of specific limitations on the exercise of governmental power. This is not a distinction without a difference. It is a shift in focus, and the different frames can, and have, led to dramatically disparate results.
When Boumediene is viewed through the proper framework, it is clear that Lindsey Graham is either insane, or as intellectually dishonest as Antonin Scalia. I may do a separate post on the specifics of the case, but for now, I encourage you to reflect on the fact that SCOTUS did not extend constitutional rights to Al Quaeda members - they already had them, and that fact should surprise exactly no one.
The question is whether, and to what extent, our government has the power, under our Constitution, to infringe or deny those rights. The Court said it did not under the circumstances.
What the SCOTUS majority did was:
- reaffirmed the concept of judicial review, i.e., that the Court itself had the power to determine whether the Executive and/or the Legislative branches hold the power to deny habeas corpus to the Gitmo detainees;
- assumed, without actually deciding, that the Executive has the power to detain people without designating them prisoners of war and affording them the protections of the Geneva Conventions.
- concluded that when the Executive detains people without affording them POW status, the Writ of Habeas Corpus can only be denied if the requirements of the Suspension Clause are met.
- The Gitmo detainess are entitled to habeas review - not because the Court bestowed a new right on them, but because neither the Executive nor the Legislative branches holds the power to suspend the Writ under the circumstances.
The moral of this story is that the Constitution applies to everything our government does, always and without exception. Ours is a government of limited powers, and if We the People have not granted the power to act through the Constitution, then the government has no power to act. Period.
We would do well to remember this foundational principle - we endanger not only ourselves, but the rest of the world, when we forget it.